Rogers v. Petroleo Brasileiro, SA, 673 F. 3d 131 - Court of Appeals, 2nd Circuit 2012

Defendant-appellant Petroleo Brasileiro, S.A. ( Petrobrás or the Company ) appeals from an Order filed September 27, 2010, in the United States District Court for the Southern District of New York (Gardephe, J.), pursuant to which the court, in a single Memorandum Opinion and Order, denied Petrobrás\u27 motion to dismiss, for lack of subject matter jurisdiction, the plaintiffs-appellees\u27, Dennis Rogers and Kevin Burlew (collectively, the plaintiffs ), separate actions to recover for breach of contract.[2] The court based its subject matter jurisdiction determination on the commercial activities exception to foreign sovereign immunity as set forth in the Foreign Sovereign Immunities Act. 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), 1602-11 (2006) ( FSIA ). The court also denied Petrobrás\u27 motions to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). This appeal presents us principally with two issues arising under the FSIA. We must determine, as regards clause two of the commercial activities exception, whether the plaintiffs\u27 claims are sufficiently based upon any act that Petrobrás performed in the United States that is in connection with [Petrobrás\u27] commercial activity in Brazil. Id. § 1605(a)(2). We also must decide, with respect to clause three, whether Petrobrás\u27 extraterritorial commercial acts caused a direct effect in the United States. Id. In both cases, Petrobrás contends that the District Court erred in finding the requirements of the exceptions to be satisfied and thus argues that the court lacked jurisdiction over the actions. For the reasons that follow, we hold that Petrobrás is immune under the FSIA and therefore reverse the Order of the District Court